HomeMy WebLinkAboutAgr 2019-04-24 (ACV Argo) IMPROVEMENT AGREEMENT FOR PUBLIC IMPROVEMENTS
(TIBURON BOULEVARD)
This Improvement Agreement for Public Improvements ("Improvement Agreement") is
between the Town of Tiburon, a California municipal corporation and general law Town
("Town") and ACV Argo Tiburon LP, a California limited partnership ("Developer"). This
Improvement Agreement is effective as of the date the Improvement Agreement is signed by the
Town ("Date of Improvement Agreement").
RECITALS
A. On October 21, 2015, the Tiburon Town Council approved Resolution No. 42-
2015 ("Resolution"), for the demolition of an existing commercial building located at 1694-1696
Tiburon Boulevard and the construction of a mixed-use commercial/residential building at that
site ("Project").
B. Condition 12 attached to Resolution requires Developer to contribute to a future
Town project to improve Tiburon Boulevard frontage and reduce pedestrian congestion as
identified in General Plan Policy DT-30 and Program DT-r("Public Improvement"). The
contribution amount for the Public Improvement was required to be finalized prior to issuance of
a building permit for the Project.
C. Developer desires to construct the Public Improvement as part of its development
of the Project, and seek contribution from the Town for the Public Improvement.
D. The purpose of this Improvement Agreement is to satisfy Condition 12 of the
Resolution by providing a written agreement to specify the terms and financial responsibilities of
each party regarding the Public Improvement.
IMPROVEMENT AGREEMENT
NOW, THEREFORE, Town and Developer agree that the foregoing Recitals are true and
correct and said Recitals are hereby incorporated by reference and further agree as follows:
1. Design of Public Improvements.
1.1 The Town will cause to be prepared, at the Town expense, the plan, permits, and
specifications and related documents for the design of the Public Improvement. The current
design of the Public Improvement is attached hereto as Exhibit A and incorporated herein. The
Town will finalize this design, and secure an encroachment permit at its sole cost for work
within the State right of way along Tiburon Boulevard for the Public Improvement.
2. Construction of Public Improvements.
2.1 The Developer will contract with a contractor or contractors acceptable to the
Town to construct the Public Improvement ("Contract").
OAK#4826-7056-7568 v 1
2.2 Each Contract must attach the Addendum which is attached to this Improvement
Agreement as Exhibit B and the Addendum must be executed by the Developer and the
Contractor.
2.3 Intentionally deleted.
2.4 All questions from contractors regarding the Public Improvement including the
plans, specifications and Addendum received prior to submission by a contractor of a bid for the
work must be submitted by the Developer to the Town for review and comment prior to a
response ("Response") by the Developer to the question and the Response must be provided by
the Developer to all the contractor.
2.5 Each Contract between the Developer and the contractors for the Public
Improvement including the plans and specifications must be submitted to the Town Director of
Public Works for approval before the contract is signed by Developer and Contractor(s).
2.6 Any changes to the design or construction of the Public Improvement must be
reviewed and approved by the Town prior to commencement of the construction of the changes.
2.7 Developer shall be responsible for coordinating the work of all contractors on the
property for the Public Improvement work and for the Project work.
2.12 Developer shall submit to the Town As-Built plans for the Public Improvement
marked up with any revisions and modifications to reflect the final construction of the Public
Improvement.
2.13 Developer shall provide the Town with access to the property, Project site and
Public Improvement at all times, subject to temporary closures due to construction.
2.14 Developer acknowledges that Prevailing Wages are required to be paid on the
construction of the Public Improvements. Specifically, Labor Code Section 1720(c)provides in
pertinent part:
(2) If the state or a political subdivision requires a private developer to perform
construction, alteration, demolition, installation, or repair work on a public work of
improvement as a condition of regulatory approval of an otherwise private development
project, and the state or political subdivision contributes no more money, or the
equivalent of money, to the overall project than is required to perform this public
improvement work, and the state or political subdivision maintains no proprietary interest
in the overall project, then only the public improvement work shall thereby become
subject to this chapter.
(3) If the state or a political subdivision reimburses a private developer for costs that
would normally be borne by the public, or provides directly or indirectly a public subsidy
to a private development project that is de minimis in the context of the project, an
otherwise private development project shall not thereby become subject to the
requirements of this chapter.
OAK#4826-7056-7568 v 1 2
Developer shall indemnify and hold harmless the Town for any violations of Labor Code
provisions, which were caused by Developer's failure to comply with said provisions.
3. Work to Satisfaction of Town's Director of Public Works.
All of the work on the Public Improvement is to be done at the places, of the materials,
and in the manner and at the grades, all as shown upon the approved plans and specifications and
applicable Town Standards and Specifications, to the satisfaction of the Town's Director of
Public Works or the designee of the Director of Public Works.
4. Construction Management and Inspection of Public Improvement.
4.1 The Developer shall provide construction management services, and coordinate
those services with the Town during the design, permitting, construction and inspection of the
Public Improvement.
4.2 Developer shall at all times maintain proper facilities and safe access for
inspection of the Public Improvement by the Town and its designees.
4.3 Upon completion of the work, the Developer may request a final inspection by the
Town Director of Public Works or the designee of the Director of Public Works. If the Town
determines that the work has been completed in accordance with this Improvement Agreement,
then the Town shall accept the Public Improvement and thereafter, the Town shall be responsible
for the maintenance and upkeep of the Public Improvement.
4.4 No Public Improvement shall be finally accepted unless all aspects of the work
have been inspected and determined by the Town to have been completed in accordance with the
plans, specifications, and Town standards.
4.5 Developer shall provide sufficient storm drain, sewer, electricity, gas, cable, and
other utility facilities for the mixed-use development located on 1694-1696 Tiburon Boulevard
prior to final inspection. Construction/provision of adequate facilities shall not be contingent on
obtaining a Caltrans encroachment permit.
5. Iniury to Public Improvements, Public Property or Public and Private Utilities
Facilities.
5.1 Developer shall replace or repair, or have replaced or repaired, any of those public
improvements and public or private utility facilities depicted on Exhibit A attached hereto which
are destroyed or damaged in the performance of any work under this Improvement Agreement.
5.2 Developer shall bear the entire cost of replacement or repairs of any and all public
improvements or public and private utility property damaged or destroyed in the performance of
any work done under this Improvement Agreement, whether such property is owned by the
United States or any agency thereof, or the State of California, or any agency or political
subdivision thereof, or by the Town or any public or private utility corporation or by any
combination of such owners. Any repair or replacement shall be to the satisfaction of the Town
Director of Public Works or the designee of the Director of Public Works.
OAK#4826-7056-7568 vl 3
6. Developer's Obligation to Warn Public During Construction
Until final acceptance of the Public Improvement, the Developer shall give good and
adequate warning to the public of each and every dangerous condition existing in said
improvement, and will take reasonable actions to protect the public from such dangerous
condition.
7. Public Improvement Security.
The Developer shall furnish to the Town, or cause the Developer's contractors to furnish to the
Town, for the Public Improvement the following:
7.1 Performance Bond. A performance bond in an amount equal to one hundred
percent (100%) of the total estimated cost of the Public Improvement in a form submitted to the
Town Attorney for approval.
7.2 Payment Bond (also known as a"Labor and Material Bond"). A Payment Bond
to secure payment to the contractor, subcontractors and to persons renting equipment or
furnishing labor or materials to them for the work on the Public Improvement in an amount equal
to one hundred percent (100%) of the total estimated cost of the Public Improvement in a form
submitted to the Town Attorney for approval.
7.3 Any bonds submitted as security pursuant to this section shall be executed by a
surety company authorized to transact a surety business in the State of California.
7.4 The bonds shall be obtained from a responsible corporate surety (or sureties)
which is licensed by the State of California to act as surety upon bonds and undertakings and
acceptable to the Town. The surety (or sureties) shall furnish reports as to its financial condition
from time to time as requested by the Town. The premiums for said bonds shall be paid by
Developer.
7.5 Any bonds submitted shall be furnished by companies which are authorized and
licensed by the Insurance Commissioner as "admitted surety insurers." All bonds must be
submitted to the Town Attorney for approval.
8. Defense, Indemnification and Hold Harmless.
8.1 To the fullest extent permitted by law, the Developer agrees to indemnify, defend
and hold harmless, Town and any and all of Town's boards, officers, employees, agents, assigns,
and successors in interest(collectively "Indemnitees") through legal counsel reasonably
acceptable to the Town, from and against any and all claims, losses, demand and expenses,
including, but not limited to, attorney's fees and cost of litigation (collectively "Losses"), on
account of bodily injury, including death, or property damage arising out of or in any way
connected to the work performed by Developer under this Improvement Agreement.
8.2 Notwithstanding 8.1 above, the Developer shall not be required to indemnify and
hold harmless the Town Indemnitees for liability attributable to the active negligence of the
Town Indemnitees, provided such active negligence is determined by agreement between the
OAK#4826-7056-7568 v 1 4
parties or by the findings of a court of competent jurisdiction. In instances where the Town
Indemnitees are shown to have been actively negligent and where the Town Indemnitees' active
negligence accounts for only a percentage of the liability involved, the obligation of Developer
will be for that entire portion or percentage of liability not attributable to the active negligence of
Town.
8.3 This defense, indemnification and hold harmless provision shall extend to claims,
losses, damage, injury, costs, including attorney fees, and liability for injuries occurring after
completion of the construction of the Public Improvement as well as during construction, and
shall apply regardless of whether or not the Town has prepared, supplied or approved the plans
and/or specifications for the Public Improvement or has inspected or accepted the same.
Acceptance of insurance required under this Improvement Agreement shall not relieve
Developer from liability under this defense, indemnification and hold harmless provision.
Notwithstanding the foregoing, upon the Town's acceptance of the Public Improvement,
Developer shall be released from any further obligation under this paragraph 8.
9. Developer's Insurance.
9.1 Developer shall not commence any work before obtaining, and shall maintain in
force at all times during the duration and performance of this Improvement Agreement, the
policies of insurance specified in this Section. Such insurance must have the approval of the
Town as to limit, form, and amount, and shall be placed with insurers with an A.M. Best rating
of no less than A:VII.
9.2 Prior to the execution of this Improvement Agreement and prior to the
commencement of any work, the Developer shall furnish to the Town, and the Town must
approve, original certificates of insurance and endorsements effecting coverage for all policies
required by this Improvement Agreement. Developer shall not allow any contractor or
subcontractor to commence work until similar insurance first shall have been so obtained by such
contractor or subcontractor. Certificates shall be signed by a person authorized by the insurer, or
insurers, to bind coverage on their behalf. Certificate of insurance and endorsements shall be on
standard Accord, Department of Insurance, and Insurance Services Office approved forms or on
forms approved by the Town. As an alternative to providing the Town with approved forms of
certificates of insurance and endorsements, the Developer may provide complete, certified copies
of all required insurance policies, including endorsements, affecting the coverage required by
this Section. At any time, at the written request of the Town, Developer agrees to furnish one or
more copies of each required policy including declarations pages, conditions, provisions,
endorsements, and exclusions. Such copies shall be certified by an authorized representative of
each insurer.
9.3 Each insurance policy required by this Improvement Agreement shall be endorsed
to state that coverage shall not be suspended, voided, cancelled, terminated by either party,
reduced in coverage or in limits except after thirty (30) days' prior written notice by certified
mail, return receipt requested, has been given to the Town.
9.4 Any deductibles, or self-insured retentions, exceeding twenty five thousand
dollars ($25,000) must be declared to, and approved by, the Town. Upon request by the Town,
OAK 44826-7056-7568 vl 5
Developer shall demonstrate financial capability for payment of such deductibles or self-insured
retentions.
9.5 Developer and its contractors and subcontractors shall, at their expense, maintain
in effect at all times during the term of this Improvement Agreement, not less than the following
coverage and limits of insurance, which shall be maintained with insurers and under forms of
policy satisfactory to the Town. The maintenance of Developer and its contractors and
subcontractors of the following coverage and limit of insurance is a material element of the
Improvement Agreement. The failure of Developer or of any of its contractors or subcontractors
to maintain or renew coverage or to provide evidence of renewal may be treated by the Town as
a material breach of this Improvement Agreement.
9.6 Workers' Compensation Insurance. Developer shall maintain, during the term of
this Agreement, Workers' Compensation insurance for all of Developer's employees as required
by Labor Code section 3700 of the State of California and Employer's Liability Act, including
Longshoremen's and Harbor Workers' Act("Acts"), if applicable. Employer's Liability limits
shall not be less than one million dollars ($1,000,000) per occurrence. The Developer shall
execute a certificate in compliance with Labor Code section 1861, on the form provided in the
Contract Documents. The insurer shall agree to waive all rights of subrogation against the
Town, its officers, officials, and employees for losses arising from work falling within the terms
of this Improvement Agreement. Developer shall indemnify and hold harmless the Town for any
damage resulting to it, including attorney fees, from failure of Developer or any contractor or
subcontractor to take out and maintain such insurance.
9.7 Commercial General Liability Insurance. Developer shall maintain during the
term of this Improvement Agreement such commercial general liability insurance that names the
Town its elective and appointive boards and commissions, officers, agents and employees as
additional insureds. The insurance shall include, but not be limited to, protection against claims
arising from death, bodily or personal injury, or damage to property resulting from actions,
failures to act, or operations of Developer, any contractor's or subcontractor's operations
hereunder, whether such operations are by Developer or any contractor or subcontractor or by
anyone directly or indirectly employed by Developer or any contractor or subcontractor. The
amount of insurance coverage shall not be less than one million dollars ($1,000,000)per
occurrence and two million dollars ($2,000,000)per policy aggregate. As an alternative to the
policy (aggregate) the Developer may have an aggregate limit of one million dollars
($1,000,000)per occurrence apply. Coverage shall be at least as broad as Insurance Services
Office "occurrence form CG 00 01 (ed. 10/01)" covering commercial general liability or its
equivalent.
9.8 Endorsements. Developer shall see that the commercial general liability
insurance shall include, or be endorsed to include, the following:
(a) Provision or endorsement naming the Town, its officers, employees,
agents, boards, commissions, and volunteers as Additional Insureds with respect to liability
arising out of the performance of any work under this Improvement Agreement.
OAK#4826-7056-7568 v1 6
(b) Provision or endorsement stating that insurance is Primary insurance with
respect to the Town, its officers, employees, agents, boards, commissions, and volunteers, to the
extent the Town is an additional insured. Any insurance or self-insurance maintained by the
Town, its officers, officials, employees, agents, boards, commissions, and volunteers shall be
excess of the Developer's insurance and shall not contribute with it.
(c) Provision or endorsement stating that the Developer's insurance shall
apply separately to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability (cross-liability).
(d) Provision or endorsement stating that any failure to comply with reporting
or other provisions of the policies including breaches of representations shall not affect coverage
provided to the Town, its officers, employees, agents, boards, commissions, and volunteers.
10. Developer Not Agent of Town.
Developer nor any of Developer's agents, contractors, or subcontractors are or shall be
considered to be agents of the Town in connection with the performance of Developer's
obligations under this Improvement Agreement.
11. Notices.
All notices required under this Improvement Agreement shall be in writing, and delivered
in person or sent by registered or certified mail, postage prepaid.
Notices required to be given to Town shall be addressed as follows:
Town Manager
Town of Tiburon
1505 Tiburon Blvd.
Tiburon, California 94920
Notices required to be given to Developer shall be addressed as follows:
ACV Argo Tiburon LP
465 First Street West, 2nd Floor
Sonoma, CA 95476
Attn: General Counsel
12. Waiver.
The waiver by either party of a breach by the other of any provision of this Improvement
Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of
OAK#4826-7056-7568 v 1 7
either the same or a different provision of this Improvement Agreement.
13. Compliance with Laws.
Developer and their agents, employees, contractors, and subcontractors shall comply with
all federal, state and local laws in the performance of the work required by this Improvement
Agreement, including but not limited to obtaining all applicable permits and licenses.
14. No Vesting of Rights.
Entering into this Improvement Agreement shall not be construed to vest Developer's
rights with respect to any change in any zoning or building law or ordinance.
15. Approvals by Town.
Any approval or consent that is to be given by the Town under this Improvement
Agreement shall be in writing, and any approval or consent that is not in writing shall not be
binding on the Town.
16. Construction and Interpretation.
It is agreed and acknowledged by Developer that the provisions of this Improvement
Agreement have been arrived at through negotiation, and that Developer have had a full and fair
opportunity to revise the provisions of this Improvement Agreement and to have such provisions
reviewed by legal counsel. Therefore, the normal rule of construction that any ambiguities are to
be resolved against the drafting party shall not apply in construing or interpreting this
Improvement Agreement.
17. Successors and Assigns
This Improvement Agreement shall inure to the benefit of, and be binding upon, the
successors and assigns of the respective parties.
18. Severability.
The provisions of this Improvement Agreement are severable. If any portion of this
Improvement Agreement is held invalid by a court of competent jurisdiction, the remainder of
the Improvement Agreement shall remain in full force and effect unless amended or modified by
mutual written consent of the parties.
19. Actions.
Any action by any party to this Improvement Agreement, or any action concerning a
security furnished pursuant thereto, shall be brought in the appropriate court of competent
jurisdiction within the County of Marin, State of California, notwithstanding any other provision
of law which may provide that such action may be brought in some other location. The law
governing this Improvement Agreement is the law of the State of California.
OAK#4826-7056-7568 v 1 8
20. Modification.
This Improvement Agreement may be amended only by a written instrument signed by
the parties.
IN WITNESS WHEREOF, the parties have executed this Improvement Agreement as follows:
TOWN OF TIBURON
'1 `+/A
By: _ ,u
Greg"�hanis, Town Manager
r
Date:
ATTEST:
;uoc/r� Fa2L�� srF�+�fe
Lea Stefani, Town Clerk
APPROVED AS TO FORM:
Benjamin Stoc , Town Attorney
ACV Argo Tiburon LP
By: ACVA Tiburon, LLC
Its General Partner
By
Print Na S( lliSon
Print Title:
OAK#4826-7056-7568 vl 9
Exhibit A
TiB
`°°AT'°NTOWN OF TiBURON
MARIN COUNTY/ CALIFORNIA
'wk � FNT4 1N
g
IS
``PAO xECT
'07 LOO
f NEW MORNING CAFE FRONTAGE PROJECT
1696 TIBURON BLVD. TIBURON, CALIFORNIA
V awy MAP LOCATION MAP
GENERAL NOTES INDEX OF DRAWINGS LEGEND
DiSTANc. ,.,,DN A.A.I,c Aa xaAl aaA N-. A„„ , T-, nn.E SIEET P„sT,� PAnmste nFsou
O0F,T=,S,IlL 111P EIIIII'TI SlI7SL 11-1 ALD FALLS 1111 FE-FUEL 11.FIFIIA OFFD4S.1 IFTASIS I I-, �11E 1-T ILI
FEIIII
DED
FS
6 _ L Ilei IDSA.)D,1.z WOAND,c Dnrs PIOB TO STMT OP Il6 D .—LS
Lla E
TO ANr E,«.AnoN SO DAT ABBREVIATIONS __._ -
A)PCAE.-11-111OATIT 1 oLEco., �FDNT.T 111.1.1 BODE.DDT NOT DE LL'..ro. Al aNCRETE NDTCOIIIAL IT Es Te4eFTOAlE 11 TD.111S,E—
sLwcA LI.,E
e)SAII I D1STRl�T s DF,SIN I<,5).Ds-,SO, .�..,, aT "I OFF
OF_I ABLE
D c).*Il MOLLIIPI..TE«OISTecT(—)9s-1506 E o_ R RODROLE
& M1111101111.
PDAH
1111 IEITOIE III All ILL TAIIFIT AID STLERFATN,AT TO AIITELFaN1Es OFTSIDE"",I OP WORN IPEc,ED Dr TD_ �0R �` R PBI T TATTI 5.. Ph...a N
IET
LAOLLS
ro RESER All" n' P
AOANFOANA11 —IT
DE11111111 11I •F� "�)
ToSLFO' O � —11I N——1Rrne
PORsnco s ArvDsmues.1 S, FEE F=�IF
.11TRAST ALI TO S,AIOI� BE IE ITS EF MZI�
'I CIIIIIIIII ILILL 1111 1 TO AVOID"L”'L.71'SID 1 ".2.T'I'lDTF ELEC EffETRIO
'Z ieNTNE)OWECTL ATON5. au AND PPEKrvIiw,OF POLIDTAIN ENTERING INTD SioRu.xnTER FACILInEs.AS DECRi6E0 P ELDfl-.E PPANIENOF T-10 xar w ,1,OEE LM „ ws vlvE
ML El ED
TIFF,
FEEL
WGABAOE OROS Sl'lRFI SEES
T
DEAD— NEVEIR4HnNG14 TBPIINH , iu A NslAUCna, OF G ER—IlLE
IE5511r TO Ea1.PLETE TNS COST =P
15
FIT 111111DED "IFI, "11112 111
DI.TR N A LANs ABC
11 IS, TG FUSIA—I
ETEL11111 I III'SD LI P ND LATSSICISE TRAFFIC<DN eDI PeDWE,as DDD,n,E Tan,,DP nRNADN
N Au D n�TNouT 111-El w.AOVA PgiHICH BARNES.P E.N60494 O'
STATE P GIT OF III HAIL BEN Acc TI c TO TRE III ANS STANDARD PLANS ANDFIL / L PUBL C WORKS DIHECiOR/i0'n'Y ENG NFER
"COI 6Anovs6
"AAO Nc.c.AL n R DSTR.Cr nv wATEn v M B DATE
.., nelow. (�3B°ia t�1�FFS.PFlE'e PS£9i'FCDkKS[}P3SaYAlJffE02d
I
TOWN OF TIBURON TITLE SHEET
Hares& Associates
CODNEW MORNING CAFE FRONTAGE PROJECT T-1
N..c 1696 TIBURON BOULEVARD
TIBURON,CALIFORNIA 94920
NOTES KEYNOTES LEGEND
—TI-AE oc..c 0 -1— �111..—1..1 1—
1-1 T.—lE w
L '1 11 T
— A 11 0
o 1——11TAILl I'LlAlE
E.11--ITI
GHAPI{IC SCALE
7//3U/W),V Bt.VO 5T1Vz-E7)
—11T LINE
0
s,� E
4
Ep
110
rr
/V
A
E:c—C.
TOWN OF TIBURON DEM LITION PLAN
Harris & Associates
NEW MORNING CAFE FRONTAGE PROJECT D-1
1696 TIBURON BOULEVARD
TIBURON,CALIFORNIA 94920
NOTES LEGEND
GRAPIiiC SCALE
,'00505/RL VZ:) 371TE-E-0
"E lITE I
BEG"(TtI'll f
'El sTsada 0e 00'00
I I"pr�T uRo 10
Tc
-7— 10
2�
PER IT 1.T—
I'D
sovu TO(I.)
'M
12 oTTIZI., I �11 I-E I
1-6—1
TO E)
ETI 11vera 11
111111 11-11
yP
I nir-KE0 IDC K—ST Y:-:1117GtFll
TOWN OF TIBURON SITE PLAN
Hares &Associates
NEW MORNING CAFE FRONTAGE PROJECT P-1
1696 TIBURON BOULEVARD
TIBURON,CALIFORNIA 94920
NOTES LEGEND
'ECCI,$IRICTED S11-
1-1 I'S"(—Elcsrz si'-1—
IT-
GNATHIC SCALE
131 ID (&'10E S 7 F?Ef-"
1)OFF—6-DI 10 1111
-STs
Z9
T�
c—
N
E- boy
Z' -U-
--l.TO
p
-1-1 TI(E)
TOWN OF TIBURON GRADING AND DRAINAGE PLAN
Harris & Associates
NEW MORNING CAFE FRONTAGE PROJECT G-1
1696 TIBURON BOULEVARD
TIBURON,CALIFORNIA 94920 .....
NOTES LEGEND
I "IT 11 11 ILLLF-
..........SOII,
,I 1-1—11 1.TIIII TI I,'IC
P1111
I 'Ell
I AREA A-11 IOE III I- A'IT I IIIETI.IO—TTO TIIIIII I. IFEC—E—T�-,I--(T's)
I:IlIT.—I IT L� I
.1IZ11.11 III 111 1111
IT-1.1 1EITEIIII—ITIE—11E 1. 1.El —111
II—E I—
III.wnRR.-I III I EATTE
GRAPHIC SCALE
I IlLllAl III N 1O(E)1 IT 11 1 111'IAIII
IT ,
I_1111 111 2 111 S-1 IATEIALS ,N—D TI'
111111T"I I ITAIIIA 11TAll 11 lIT 1111-111
111II
1T IIIA") IATITE I I I
..A"A. ..A_
I I IIII-011 D1111 III
D11111OT 5 PART E-11 IIAIII SOI&III--(E)AS-1 LATERALS 10 L—ER II III
IINSiA 'IITT 111:11TOE 11.1 ON——ZTlITI Ill—LI/—E EA,,I
11 1 11 I'll IT IAILII 11Y 1 -111 1—IIETO—TO FOIND
0, III TIE"oECT
�O ILOC—OF(E)�I%Y(11)IILIIII—IF EITIll—AIIII—ATE-17-101 SIAIL—lY
OTAT_I_O 1-01ING PRITI TO—ET CI
71BUj-,`)A1 131,Vl', (810E,317-TfEfE-T)
I.IIEIT I.(I)ITTEE.-I
ITE 1111 IT-1111
III IATII
ATI_TO
IE)AIIT IILT
IT TO
00
A
C014NECT I;�E)SEKR
E III I.—Y ID I TELE/co..
LINI
LC
'0.".1 TO(I)-TIE
vP
411
Harris TOWN OF TIBURON UTILITY PLAN
& Associates NEW -1
MORNING CAFE FRONTAGE PROJECT
1696 TIBURON BOULEVARD
TIBURON,CALIFORNIA 94920
a oFh.E eA'o°Eary s.......
�_.
PLAN VIEW PERSPECTIVE VIEW
�1�TVPICAL SIDEWALK DETAIL 2 CURB CUT DETAIL
esus.ers ens
I I
'',. 'i ap l,'�S�€&t�l%BNCx NUT F8b&E CfltN9TCiitC'Td4t&
i
.<ozTOWN OF TIBURON CONSTRUCTION DETAILS
j Harns &Associates o' Mg NEW MORNING CAFE FRONTAGE PROJECT C-1
U1696 TIBURON BOULEVARD
TIBURON,CALIFORNIA 94920
Exhibit B
ADDENDUM TO CONTRACT
FOR PUBLIC IMPROVEMENTS
TOWN OF TIBURON
DESCRIPTION OF WORK:
OAK#4838-8700-5048 v1
ADDENDUM TO CONTRACT
This Addendum to Contract ("Addendum") is to be attached to every contract ("Contract")
entered into by ACV Argo Tiburon LP, a California corporation ( "Developer") and any
contractor which is constructing any Public Improvements (as defined herein) on Tiburon
Boulevard ("Site").
Section 1. Definitions.
1.1 Addendum. This Addendum to the Contract.
1.2 Town. The Town of Tiburon, County of Marin, State of California
1.3 Engineer. The Town Director of Public Works
1.4 Contract. The Contract between the Developer and the contractor for the work.
1.5 Contractor. The successful bidder who enters into a Contract with the Developer
for the Public Improvement as identified in Section 2 of this Addendum.
1.6 Contract Documents.
1.6.1 The Contract.
1.6.2 Addendum.
1.6.3 Plans.
1.6.4 Specifications.
Section 2. Public Improvements.
This Addendum must be attached to all Contracts for the following public improvement
("Public Improvement"):
2.1 Construction of a Sidewalk within the Tiburon Boulevard right-of-way to include
sidewalk, curb, gutter, ADA access ramps, planter areas, relocating utilities, patching
paving, and associated work.
Section 3. The Work.
3.1 The work ("Work") to be performed by Contractor is described in the Contract.
3.2 In completing the Work, Contractor must employ, at a minimum, the applicable
generally accepted standards of its industry in existence at the time of performance as
utilized by persons engaging in similar work.
Page 1
OAK#4838-8700-5048 v1
3.3 Except as specifically provided in the Contract Documents, Contractor must
furnish, at its sole expense, all of the labor, materials, tools, equipment, services and
transportation necessary to perform all of the Work.
3.4 Contractor must perform all of the Work in strict accordance with the Contract.
3.5 Work shall only be performed between the hours of 7:00 a.m. to 5:00 p.m. Monday
through Friday, and 9:30 a.m. to 4:00 p.m. on Saturday. Only quiet work is allowed to be
performed on Saturdays, such that noise from any source associated with the permitted
Work, including but not limited to construction activity, amplified sound, and worker's
voices, shall not be plainly audible beyond the property line. Work covered by a permit
shall not be performed on Sunday or on holidays observed by the Town of Tiburon. These
holidays are New Year's Day, Martin Luther King Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
Any request for a temporary change in work hours must be submitted to the Town
Engineer. Limited appropriate temporary changes to work hours may be considered
contingent on advance notice (30 days minimum). Approval of any temporary change to
the work hours shall be approved by the Town Engineer solely at his/her discretion.
Section 4. Time to Perform the Work.
4.1 Time is of the essence with respect to Contractor's Work. Contractor agrees to
diligently pursue performance of the Work within the time specified by the Contract.
4.2 Contractor will be excused from any delay in performance or failure to perform due
to causes beyond the control of Contractor. Such causes include, but are not limited to,
acts of God, acts of terrorism, acts of federal, state or local governments, acts of Town,
court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather.
4.3 If Contractor is delayed by any cause beyond Contractor's control, the Developer
may, with the consent of the Director of Public Works of the Town of Tiburon ("Director"),
but is not required to, grant a time extension for the completion of the Work. If delay
occurs, Contractor must notify the Developer and the Director in writing within 48 hours
of the cause and the extent of the delay and how such delay interferes with Contractor's
performance of the Work.
Section 5. Compensation and Payment.
5.1 The Developer shall be responsible for making payment to the contractor for the
work performed on the Public Improvement.
Section 6. Labor Code and Prevailinq Wage Requirements.
6.1 State Wage Determination.
(a) Under California Labor Code section 1770 and following, Contractor must pay not
less than the prevailing rate of per diem wages as determined by the Director of the
Page 2
OAK#4838-8700-5048 0
California Department of Industrial Relations. Copies of such prevailing rate of per diem
wages are on file at Town Hall, 1505 Tiburon Blvd, Tiburon, CA 94920, which copies must
be made available to any interested party on request, and are also available on the
Internet at the website of the Department of Industrial Relations:
http://www.dir.ca.gov/dlsr/PWD/index.htm. Contractor must post a copy of such
determination at each job site.
(b) Under Labor Code section 1775, Contractor will, as a penalty to Town, forfeit the
statutory penalty each calendar day, or portion thereof, for each worker paid less than the
prevailing rates as determined by the Director for such work or craft in which such worker
is employed for any public work done under the Contract by it or by any subcontractor
under it.
(c) Contractor must comply with all provisions of Labor Code section 1775. Under
Section 1775, Contractor will forfeit the statutory penalty to Town for each worker
employed in the execution of the Contract by Contractor or any subcontractor for each
calendar day, or portion thereof, in which the worker is paid less than the prevailing rates.
Contractor may also be liable to pay the difference between the prevailing wage rates
and the amount paid to each worker for each calendar day, or portion thereof, for which
each worker was paid less than the prevailing wage rate.
6.2 Compliance Monitoring.
(a) The Work is subject to prevailing wage compliance monitoring and enforcement
by the Department of Industrial Relations (Labor Code § 1771.4).
(b) Pursuant to Labor Code section 1771.4, Contractor and its subcontractor(s) must
furnish the payroll records specified in Labor Code section 1776 directly to the Labor
Commissioner and to the Town, in the following manner:
(1) At least monthly or more frequently if specified in the contract with the awarding
body.
(2) In a format prescribed by the Labor Commissioner.
(c) Contractor must post job site notices, as prescribed by regulation (Labor Code §
1771.4).
(d) If the Town determines based on its review of the Contractor's or any of its
subcontractor's certified payroll records that the Contractor or any subcontractor has underpaid
its employees, then upon the second occurrence of such underpayment, the Town reserves
the right to obtain a certified payroll compliance monitoring consultant to assist the Town in the
additional work required to ensure Contractor or any subcontractor compliance and the
associated costs will be the responsibility of the Contractor and will be deducted from Pay
Estimates due to the Contractor.
Page 3
OAK#4838-8700-5048 v1
6.3 Payroll Records.
(a) Under Labor Code section 1776, Contractor and each subcontractor must keep an
accurate payroll record, showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and week, and the actual
per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by it in connection with the public work.
(b) The payroll records enumerated in subsection (a) above, must be certified and
made available for inspection at all reasonable hours at the principal office of Contractor
on the following basis:
(1) A certified copy of an employee's payroll record must be made available for
inspection or furnished to the employee or his or her authorized representative on
request.
(2) A certified copy of all payroll records enumerated in subsection (a) must be made
available for inspection or furnished upon request to a representative of the body
awarding the Contract, the Division of Labor Standards Enforcement, and the Division of
Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in subsection (a) must be made
available upon request by the public for inspection or copies thereof made. However, a
request by the public must be made through either the body awarding the Contract, the
Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. If
the requested payroll records have not been provided pursuant to subparagraph (2)
above, the requesting party must, prior to being provided the records, reimburse the costs
of preparation by Contractor, subcontractors, and the entity through which the request
was made. The public may not be given access to the records at the principal offices of
Contractor.
(c) Contractor or any subcontractor must file a certified copy of the records
enumerated in subsection (a) with the entity that requested the records within 10 days
after receipt of a written request.
(d) Any copy of records made available for inspection and copies furnished upon
request to the public or any public agency by Town, the Division of Apprenticeship
Standards, or the Division of Labor Standards Enforcement must be marked or obliterated
in such a manner as to prevent disclosure of an individual's name, address, and social
security number. The name and address of Contractor or any subcontractor performing
the contract may not be marked or obliterated.
(e) Contractor must inform Town of the location of the records enumerated under
subsection (a), including the street address, Town and county, and must, within five
working days, provide a notice of change of location and address.
(f) Contractor or any subcontractor has 10 days in which to comply subsequent to
receipt of written notice requesting the records enumerated under subsection (a). In the
Page 4
OAK#4838-8700-5048 v1
event of noncompliance with the requirements of this Section, Contractor must, as a
penalty to the state or Town, forfeit the statutory penalty for each calendar day, or portion
thereof, for each worker, until strict compliance is effectuated. These penalties will be
withheld from progress payments then due. Responsibility for compliance with Section
6.3 (a) through (f) lies with Contractor.
(g) For all projects, the payroll records enumerated in subsection 6.3 (a) above, must
be delivered to the Labor Commissioner (no event less frequently than monthly) directly
to the Labor Commissioner in the format prescribed by the Labor Commissioner.
(h) Upon request, Contractor must submit backup documentation for certified payroll
records including cancelled checks, proof of payment of fringe benefits, time cards,
apprenticeship documentation, and other backup records.
6.4 Apprentices.
Contractor must comply with Labor Code section 1777.5 and following, and Title 8,
California Administrative Code section 200 and following, with respect to apprentices. To
ensure compliance and complete understanding of the law regarding apprentices, and
specifically the required ratio thereunder, Contractor and subcontractors should, where
some question exists, contact the Division of Apprenticeship Standards prior to
commencement of the Work. Responsibility for compliance with this Section lies with
Contractor. Town policy is to encourage the employment and training of apprentices on
its construction contracts as may be permitted under local apprenticeship standards.
These provisions require that contractors and subcontractors submit contract award
information to the applicable joint apprenticeship committee, employ apprentices in
apprenticeable occupations in a ratio of not less than one hour or apprentice's work for
every five hours of labor performed by a journeyman (unless an exception is granted in
accordance with Section 1777.5), contribute to the fund or funds in each craft or trade or
a like amount to the California Apprenticeship Council, and that contractors and
subcontractors may not discriminate among otherwise qualified employees as
apprentices solely on the ground of sex, race, religion, creed, national origin, ancestry or
color. Only apprentices as defined in Labor Code section 3077, who are in training under
apprenticeship standards and who have written apprentice agreements may be employed
on public works in apprenticeable occupations. The responsibility for compliance with
these provisions is fixed with the prime contractor for all apprenticeable occupations.
Contractor agrees to provide Division of Apprenticeship Standards (DAS) Form 13 or any
successor apprenticeship reporting form to Town no later than the time of Contractor's
execution of the Contract Documents.
6.5 Working Hours.
Contractor must comply with all applicable provisions of Labor Code section 1810 and
following relating to working hours. Contractor will forfeit the statutory penalty to Town
for each worker employed in the execution of the Contract by Contractor or by any
subcontractor for each calendar day during which such worker is required or permitted to
work more than eight hours in any one calendar day and 40 hours in any one calendar
Page 5
OAK#4838-8700-5048 v1
week, unless such worker receives compensation for all hours worked in excess of eight
hours at not less than one and a half(1-1/2) times the basic rate of pay. Contractor must
comply with all requirements for payment of overtime and holiday rates of pay.
6.6 Workers Compensation.
(a) Under Labor Code sections 1860 and 3700, Contractor is required to secure the
payment of compensation of its employees.
(b) Under Labor Code section 1861, Contractor must sign and file with Town the
following certification prior to performing the Work of the Contract: "I am aware of the
provisions of section 3700 of the Labor Code which require every employer to be insured
against liability for worker's compensation or to undertake self-insurance in accordance
with the provisions of that code, and I will comply with such provisions before commencing
the performance of the Work of this Contract."
6.7 Protection of Workers in Trench Excavations.
As required by Labor Code section 6705, whenever Work under the Contract involves the
excavation of any trench or trenches five feet or more in depth, Contractor must submit
for acceptance by Town or by a registered civil or structural engineer, employed by Town,
to whom authority to accept has been delegated, in advance of excavation, a detailed
plan showing the design of shoring, bracing, sloping, or other provisions to be made for
worker protection from the hazard of caving ground during the excavation, of such trench
or trenches. If such plan varies from the shoring system standards established by the
Construction Safety Orders of the Division of Industrial Safety, the plan must be prepared
by a registered civil or structural engineer employed by Contractor, and all costs therefor
will be included in the price named in the Contract for completion of the Work as set forth
in the Contract Documents. Nothing in this Section may be deemed to allow the use of a
shoring, sloping, or other protective system less effective than that required by the
Construction Safety Orders. Nothing in this Section may be construed to impose tort
liability on Town, the Town Engineer, nor any Town officers, agents, representatives, or
employees. Unless a specific bid item is included in the Bid Proposal, payment for
protection of workers in excavations requiring adequate sheeting, shoring, bracing and
other safety provisions must be included in the bid item for mobilization. A separate item
must be shown in the schedule of values for protection of workers in trench excavations.
Contractor must obtain all necessary permits for excavation work from Cal/OSHA
6.8 Contractor must post at the work site, or if there is no regular work site then at its
principal office, for the duration of the Contract, a copy of the determination by the Director
of the Department of Industrial Relations of the specified prevailing rate of per diem
wages. (Labor Code § 1773.2.) When applicable, copies of the prevailing rate of per
diem wages will be on file at Town's Department of Public Works and available to
Contractor and any other interested party upon request.
6.9 Contractor, and any subcontractor engaged by Contractor, may pay not less than
the specified prevailing rate of per diem wages to all workers employed in the execution
Page 6
OAK#4838-8700-5048 v1
of the contract. (Labor Code § 1774.) Contractor is responsible for compliance with Labor
Code section 1776 relative to the retention and inspection of payroll records.
6.10 Contractor has reviewed and agrees to comply with any applicable provisions for
any public work subject to Department of Industrial Relations (DIR) Monitoring and
Enforcement of prevailing wages, including the registration requirements of Labor Code
Section 1771.1(a). Town hereby notifies Contractor that Contractor is responsible for
submitting certified payroll records directly to the State Compliance Monitoring Unit
(CMU). For further information concerning compliance monitoring please visit the website
location at: bl!a-//www.dir.ca.gov/dlse/cmu/cmu.html.
6.11 Contractor must comply with Labor Code section 1771.1(a), which provides that
Contractor may award any contracts and subcontracts for work that qualifies as a "public
work" only to subcontractors which are at that time registered and qualified to perform
public work pursuant to Labor Code Section 1725.5. Contractor must obtain proof of such
registration from all such subcontractors."
Section 7. Warranty.
7.1 The labor and materials bond must remain in effect until expiration of six months
after the period in which verified claims may be filed as provided in Civil Code section
9356, and the performance bond must be paid up and in effect for one year after the
acceptance of the job by Town in accordance with the guarantee required by Subsection
7.2, below.
7.2 Besides warranties and guaranties otherwise required by the Contract Documents,
Contractor warrants and guarantees all Work for a period of one year after date of
acceptance of the Work by Town, unless a longer period is specified, and must repair or
replace any or all such Work, together with any other Work, which may be displaced in
so doing, that may prove defective in workmanship, materials or both within one year from
date of acceptance without expense whatsoever to Town, ordinary wear and tear, unusual
abuse or neglect excepted. The Engineer will give notice of observed defects with
reasonable promptness. Contractor must notify the Engineer upon completion of repairs.
7.3 In the event Contractor fails to commence the corrective work within 10 days after
being notified in writing to do so by the Engineer and prosecute the corrective work to
timely completion, Town may proceed to have defects corrected and made good at the
expense of Contractor who must pay the costs and charges of such corrective work
immediately on demand.
7.4 If, in the opinion of the Engineer, defective work creates a condition that requires
immediate corrective work, the Engineer will attempt to give the notice required by this
Section. If Contractor cannot be contacted or does not comply with Town's request for
correction within a reasonable time as determined by the Engineer, Town may,
notwithstanding the provisions of this Section, proceed to make such corrective work, and
Contractor will be liable for costs of such corrective work. Such action by Town will not
Page 7
OAK#4838-8700-5048 v1
relieve Contractor of the warranties and guaranties provided in this Section or elsewhere
in the Contract.
7.5 This Section does not in any way limit the warranty or guaranty on any material for
which a longer warranty or guaranty is specified in the Contract Documents or on any
items for which a manufacturer gives a warranty or guaranty for a longer period.
Contractor must furnish the Engineer with all appropriate warranty and guaranty
certificates upon completion of the Work.
Section 8. Subcontracting.
8.1 Subcontractors Bound By Contract and Addendum.
Contractor agrees to bind every subcontractor by the terms of the Contract and this
Addendum as far as such terms are applicable to the subcontractor's work. If Contractor
subcontracts any part of this Contract, Contractor will be fully responsible to Developer
for the acts and omissions of every subcontractor and of persons either directly or
indirectly employed by every such subcontractor. Nothing contained in the Contract
Documents, however, creates any contractual relation between any subcontractor and
the Developer or the Town.
8.2 Copy of Addendum.
Contractor agrees to provide a copy of this Addendum to all subcontractors for any work
on the Public Improvements.
8.3 Developer and Town Consent to Subcontractors.
Developer's or Town's consent to, or approval of, any subcontractor under the Contract
does not in any way relieve Contractor of its obligations under the Contract or this
Addendum nor will such subcontract or approval be deemed to waive any provision of the
Contract between the Developer and Contractor.
Section 9. Authority of the Engineer.
9.1 General Authority.
The Engineer will decide any and all questions which may arise as to the quality or
acceptability of materials furnished and Work performed, and as to the manner of
performance, and must decide all questions that may arise as to the interpretation of the
drawings and specifications.
9.2 Interpretation of Drawings and Specifications.
The Engineer will interpret the meaning of any part of the drawings and specifications
about which any misunderstanding may arise and the Engineer's decision will be final.
Should there appear to be any error or discrepancy in or between the drawings and
specifications, Contractor must refer the matter to the Engineer for adjustment before
Page 8
OAK#4838-8700-5048 v1
proceeding with the Work. Should Contractor proceed with the Work without so referring
the matter, it does so at its own risk.
9.3 Inspection.
(a) The Engineer must be provided full access to all operations involving the Work
under the Contract and be provided reasonable advance notice of the time and place of
operations which the Engineer desires to observe. The Engineer must be provided with
all requested samples of materials and Work for testing purposes.
(b) Contractor must furnish the Engineer reasonable facilities for obtaining such
information as may be necessary to keep the Engineer fully informed respecting the
progress and the manner of the Work. The Engineer's inspection of the Work will not
relieve Contractor from any obligation under the Contract. The Engineer has authority to
stop any Work whenever provisions of Contract Documents are not being complied with
and Contractor must instruct its employees and any subcontractors accordingly.
Section 10. Non-Discrimination.
Contractor, its officers, agents, employees, and subcontractors may not discriminate in
the employment of persons to perform the Work in violation of any federal or state law
prohibiting discrimination in employment, including based on the race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression, age,
sexual orientation, of any person, except as provided under California Government Code
section 12940. Contractor is responsible for compliance with this section.
Section 11. General Legal Compliance.
11.1 In performing the Work, Contractor must comply with all applicable statutes, laws
and regulations, including, but not limited to, OSHA requirements and the Tiburon
Municipal Code.
11.2 Contractor must, at Contractor's sole expense, obtain all necessary permits and
licenses required for the Work, and give all necessary notices and pay all fees and taxes
required by law, including, without limitation, any business license tax imposed by Town.
11.3 Contractor must maintain a valid California Contractor's License throughout the
term of this Contract.
Section 12. Clayton and Cartwright Act Assignments.
In entering into this Contract or a contract with a subcontractor to supply goods, services,
or materials pursuant to this Contract for the Project, Contractor and any subcontractor
will be deemed to have offered and agreed to assign to Town all rights, title, and interest
in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700 of Part
2 of Division 7 of the California Business and Professions Code), arising from purchases
Page 9
OAK#4838-8700-5048 v1
of goods, services, or materials for the Project. This assignment will be deemed made
and will become effective at the time Town tenders final payment to Contractor, without
further acknowledgement by the Parties.
Section 13. Independent Contractor.
Contractor is and will at all times remain as the Developer and the Town a wholly
independent contractor. Neither Town nor any of its officers, employees, or agents will
have control over the conduct of Contractor or any of Contractor's officers, employees,
agents or subcontractors, except as expressly set forth in this Addendum. Contractor
may not at any time or in any manner represent that it or any of its officers, employees,
agents, or subcontractors are in any manner officers, employees, agents or
subcontractors of Town.
Section 14. Indemnification.
14.1 Contractor agrees to the fullest extent permitted by law to (1) immediately defend
and (2) indemnify Developer and the Town from and against, any and all claims and
liabilities, regardless of the nature or type, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Contractor, or its officers, employees,
agents, or subcontractors committed in performing any Work under this Contract or the
failure to comply with any of the obligations of this Contract (collectively, "Claims"). The
Claims subject to Contractor's duties to defend and indemnify include, without limitation,
all claims, actions, causes of action, proceedings, suits, losses, damages, penalties,
fines,judgments, liens, levies, and associated investigation and administrative expenses.
Such Claims also include defense costs, including reasonable attorneys' fees and
disbursements, expert fees, court costs, and costs of alternative dispute resolution.
14.2 Contractor's duty to defend is a separate and distinct obligation from Contractor's
duty to indemnify. Contractor is obligated to defend the Developer and the Town in all
legal, equitable, administrative, or special proceedings, with counsel approved by the
Developer and the Town, immediately upon tender to Contractor of the Claim in any form
or at any stage of an action or proceeding, whether or not liability is established. An
allegation or determination that persons other than Contractor are responsible for the
Claim does not relieve Contractor from its separate and distinct obligation to defend under
this section. The obligation to defend extends through final judgment, including
exhaustion of any appeals. The defense obligation includes an obligation to provide
independent defense counsel if Contractor asserts that liability is caused in whole or in
part by the negligence or willful misconduct of the Developer or any Town indemnified
party. If it is finally adjudicated that liability was caused by the comparative active
negligence or willful misconduct of any Developer or any Town indemnified party, then
Contractor may submit a claim to the Developer and the Town, as appropriate, for
reimbursement of reasonable attorneys' fees and defense costs in proportion to the
established comparative liability of the Developer and/or the Town indemnified party.
14.3 Contractor agrees that its defense and indemnification obligation under this
section, includes the reasonable costs of attorneys' fees incurred by the Town Attorney's
Page 10
OAK#4838-8700-5048 v1
office to monitor and consult with Contractor regarding the defense of any Claims,
including providing direction with regard to strategy, preparation of pleadings, settlement
discussions, and attendance at court hearings, mediations, or other litigation related
appearances. Town will use its best efforts to avoid duplicative attorney work or
appearances in order to keep defense costs to a reasonable minimum.
14.4 Contractor agrees that settlement of any Claim will require the consent of the
Developer and the Town. Developer and the Town agree that their consent will not be
unreasonably withheld provided that Contractor is financially able (based on
demonstrated assets) to fulfill its obligation to indemnify the Developer and the Town for
the costs of any such settlement as required under this Contract.
14.5 Contractor's obligation to indemnify the Developer and Town applies unless it is
finally adjudicated that the liability was caused by the sole active negligence or sole willful
misconduct of the Developer and/or a Town indemnified party. If a Claim is finally
adjudicated and a determination made that liability was caused by the sole active
negligence or sole willful misconduct of the Developer and/or a Town indemnified party,
then Contractor's indemnification obligation will be reduced in proportion to the
established comparative liability.
14.6 For the purposes of this section, "Town" includes Town's officers, officials,
employees and agents.
14.7 The provisions of this section will survive the expiration or earlier termination of
this Agreement.
Section 15. Insurance.
Contractor agrees to have and maintain in full force and effect during the term of this
Contract the insurance coverages listed in Exhibit A ("Insurance"), which is made a part
of this Contract.
Section 16. Notice.
16.1 All written notices required or permitted to be given under this Contract will be
deemed made when received by the other Party at its respective address as follows:
To Town: Town of Tiburon
1505 Tiburon Blvd.
Tiburon, California 94920
Attention: Town Engineer
To Developer:
Page 11
OAK#4838-8700-5048 v1
To Contractor:
16.2 Notice will be deemed effective on the date personally delivered or transmitted by
facsimile or email. If the notice is mailed, notice will be deemed given three days after
deposit of the same in the custody of the United States Postal Service, postage prepaid,
for first class delivery, or upon delivery if using a major courier service with tracking
capabilities.
16.3 Any Party may change its notice information by giving notice to the other Party in
compliance with this section.
Section 17. Rights of Termination and to Complete the Work.
17.1 The occurrence of any of the following is a default by Contractor under this
Contract:
17.1.1 Contractor refuses or fails to prosecute the Work or any part thereof with such
diligence as will insure its completion within the time specified or any permitted extension.
17.1.2 Contractor fails to complete the Work on time.
17.1.3 Contractor is adjudged bankrupt, or makes a general assignment for the benefit of
creditors, or a receiver is appointed on account of Contractor's insolvency.
17.1.4 Contractor fails to supply enough properly skilled workers or proper materials to
complete the Work in the time specified.
17.1.5 Contractor fails to make prompt payment to any subcontractor or for material or
labor.
17.1.6 Contractor fails to abide by any applicable laws, ordinances or instructions of Town
in performing the Work.
17.1.7 Contractor breaches or fails to perform any obligation or duty under the Contract.
17.2 Upon the occurrence of a default by Contractor, the Director (or his/her designee)
or the Developer with the consent of the Director, may serve a written notice of default on
Contractor specifying the nature of the default and the steps needed to correct the default.
Unless Contractor cures the default within 10 days after the service of such notice, or
satisfactory arrangements acceptable to the Developer and the Town for the correction
or elimination of such default are made, as determined by Developer and the Town, the
Developer, with the consent of the Director, may thereafter terminate the Contract by
serving written notice on Contractor. In such case, Contractor will not be entitled to
Page 12
OAK#4838-8700-5048 v1
receive any further payment, except for Work actually completed prior to such termination
in accordance with the provisions of the Contract.
17.3 In event of any such termination, the Developer and/or the Director will immediately
serve written notice of the termination upon Contractor's surety. The surety will have the
right to take over and perform pursuant to this Contract; provided, however, that if the
surety does not give the Developer and the Town written notice of its intention to take
over and perform this Contract within five days after service of the notice of termination
or does not commence performance within 10 days from the date of such notice, the
Developer may take over the Work and prosecute the same to completion by contract or
by any other method it may deem advisable for the account and at the expense of
Contractor. Contractor and the surety will be liable to the Developer for any and all excess
costs or other damages incurred by the Developer in completing the Work.
17.4 If Developer takes over the Work as provided in this Section, Developer may,
without liability for so doing, take possession of, and utilize in completing the Work, such
materials, appliances, plant, and other property belonging to Contractor as may be on the
site of the Work and necessary for the completion of the Work.
17.5 If the Developer takes over the Work, the Developer may also take possession of
outstanding materials on order for the completion of the project, upon payment to the
vendor. All excess costs incurred by the Developer in obtaining such materials, will be
the responsibility of the Contractor.
Section 18. Project Documents.
19.1 All data, drawings, maps, models, notes, photographs, reports, studies and other
documents (collectively, "Project Documents") prepared, developed or discovered by
Contractor in the course of performing any of the Work under this Contract will be.provided
by the Contractor to the Developer and the Town. Upon the expiration or termination of
this Contract, Contractor must turn over all original Project Documents to Town in its
possession, and copies to the Developer, and Contractor may retain copies of any of the
Project Documents it may desire. The Town will be the owner of the documents following
completion of the construction work.
19.2 The Contractor shall furnish to the Developer and the Town As-Built plans for the
Work marked up with any revisions and modifications to reflect the final construction of
the Work.
Section 19. Bonds.
The Contractor shall furnish bonds for the work as follows:
19.1 Performance Bond. A performance bond in an amount equal to one hundred
percent (100%) of the total estimated cost of each Public Improvement in the form as set
forth in Exhibit B to this Addendum or in such other form as approved by the Town
Attorney.
Page 13
OAK#4838-8700-5048 v1
19.2 Payment Bond (also known as a "Labor and Material Bond"). A Payment Bond to
secure payment to the contractor, subcontractors and to persons renting equipment or
furnishing labor or materials to them for the work on the Public Improvement in an amount
equal to one hundred percent (100%) of the total estimated cost of the Public
Improvement in a form as set forth in Exhibit C to this Addendum or in such other form as
approved by the Town Attorney.
19.3 Any bonds submitted as security pursuant to this section shall be executed by a
surety company authorized to transact a surety business in the State of California.
19.4 The bonds shall be obtained from a responsible corporate surety (or sureties)
acceptable to the Town, which is licensed by the State of California to act as surety upon
bonds and undertakings. The surety (or sureties) shall furnish reports as to its financial
condition from time to time as requested by the Town.
19.5 Any bonds submitted shall be furnished by companies which are authorized and
licensed by the Insurance Commissioner as "admitted surety insurers."
Section 20. General Provisions.
20.1 Utilities.
(a) All utilities, including but not limited to, electrical, water, gas, telephone used on
the Work will be furnished at Contractor's sole expense. Contractor must furnish and
install necessary, temporary distribution systems, including meters, from distribution
points to points on site where utility is necessary to carry on the Work. Upon completion
of the Work, Contractor must remove all temporary distribution systems. Unless otherwise
indicated, the Contractor must also arrange for permanent utilities as necessary for
completion and operation of the work. Contractor must pay for utilities until the "Project
Acceptance and Final Payment" form is executed and the Work is accepted by the
Engineer.
(b) If the Contract is for an addition to an existing structure, Contractor may, with
written permission of the Engineer, use Town's existing utilities to carry on the Work by
making prearranged payments to Town.
20.2 Dust Control.
Contractor must provide such dust control equipment and methods as may be required
to protect adjacent property from annoyance or damage from dust caused by its
operations, and failure to control such dust will be cause for the Engineer to stop the Work
until the dust is controlled. Contractor will have no recourse to collect from Town for any
loss of time or expense sustained by Contractor due to such suspension of the Work.
20.3 Layout and Field Engineering.
All field engineering required for laying out the Work and establishing grades for
earthwork operations will be furnished by Contractor at its sole expense. Such
Page 14
OAK#4838-8700-5048 v1
engineering will be done by a qualified Civil Engineer approved by the Engineer.
20.4 Tests and Inspections.
(a) If the Contract, or any laws, ordinances, regulators or any public authority requires
any of the Work to be specially inspected, tested or approved, Contractor must give notice
in accordance with such authority of its readiness for such inspection or test at least two
working days prior to such inspection. If inspection or testing is by an authority other than
Town, Contractor must arrange for such inspection or testing, and Contractor must also
give at least two working days prior written notice to the authority and the Engineer of the
date fixed for such inspection. Required certificates of inspection or approval must be
secured by Contractor. If any of the Work is covered up without approval or consent of
the Engineer, it must, if required by the Engineer, be uncovered for inspection or testing
and satisfactorily reconstructed at Contractor's sole expense in strict accordance with the
Contract Documents. Costs of tests and inspections of any materials found to be not in
compliance with the Contract must be paid for by Contractor at its sole expense. Other
costs for tests and inspection of materials will be paid by Town.
(b) Where such inspection and testing are to be conducted by an independent
laboratory agency, such materials or samples of materials to be tested will be selected by
such laboratory or agency, or the Engineer, and not by Contractor.
(c) Contractor must notify the Engineer in writing a sufficient time in advance of
manufacture of materials to be supplied under contract, which must by terms of the
contract be tested, Any materials shipped by Contractor from the source of supply prior
to having satisfactorily passed such testing and inspection, or prior to receipt of notice
from the Engineer that such testing and inspection will not be required, may not be
incorporated in the Work without prior approval of the Engineer and subsequent testing
and inspections.
(d) Re-examination of questioned Work may be ordered by the Engineer and, if so
ordered, the Work must be uncovered by Contractor. If such Work is found to be in
accordance with the Contract Documents, Town will pay the costs of re-examination and
replacement. If such Work is found not to be in accordance with the Contract Documents,
Contractor must pay the costs at its sole expense.
20.5 Soils Investigations Report.
When a soils investigation report is available from Town, such report will not be a part of
the Contract. Any information obtained from such report or any information given on
drawings as to subsurface soil condition or to elevations of existing grades or elevations
of underlying rock is approximate only, is not guaranteed, and does not form a part of the
Contract. Contractor is required to make a visual examination of site and must make
whatever tests it deems appropriate to determine underground condition of soil.
Page 15
OAK#4838-8700-5048 v1
20.6 Compaction Tests.
(a) Contractor must perform compaction tests as required by the Town Engineer, in
accordance with ASTM D-1557 or California Test Method No. 216.
(b) Contractor must bear the total expense of all failing tests.
20.7 Cutting and Patching.
(a) Contractor must do all cutting, fitting, or patching of the Work as required to make
its several parts come together properly and fit to receive or be received by other
contractors showing upon, or reasonably implied by, the drawings and specifications for
the completed project, as the Engineer may direct. All costs caused by defective or ill-
timed Work will be borne by the Contractor.
(b) Contractor may not endanger any of the Work by cutting, excavating, or otherwise
altering the Work and may not cut or alter any Work of any other contractor, except with
the written consent of the Engineer.
20.8 Fulfillment of Contract.
Contractor must, at its sole expense, protect and care for all the Work it performs until the
Contract has been fulfilled to the satisfaction of, and the Work has been accepted in
writing by, the Engineer. The date upon which the Engineer accepts the Work as
complete will be the date that Contractor is relieved from responsibility to protect the
Work.
20.9 Final Clean Up.
Upon completion of the Work and before acceptance and final payment will be made,
Contractor, as its sole expense, must clean the Work area and all premises occupied by
it in connection with the Work. All rubbish, weeds, graffiti, one-call USA markings, excess
materials, falsework, temporary structures, tools and equipment must be removed and all
parts of the Work must be left in a neat and presentable condition. All excavations left by
removal of structures must be filled and compacted with clean suitable soil acceptable to
the Engineer.
20.10 Certificate as to Compliance With Certain Regulations.
Contractor must file with Engineer, prior to the acceptance of the Work, a certificate in
form substantially as follows:
I (We) hereby certify that all of the Work has been performed and materials supplied in
accordance with the specifications, drawings, and Contract Documents for the Work and
that:
(a) no less than the prevailing rates of per diem wages as ascertained by the Director
of Industrial Relations has been paid to workers employed on this Work and a copy of
Page 16
OAK#4838-8700-5048 v1
these rates has been posted and maintained at the Work site at all times during the course
of the Work;
(b) there have been no unauthorized substitutions of subcontractors; nor have any
unauthorized subcontracts been entered into;
(c) no subcontract was assigned or transferred or performed by anyone other than the
original subcontractor, except as provided in the Subletting and Subcontracting Fair
Practices Act, Public Contract Code section 4100 and following; and
(d) all claims for materials and labor and other services performed in connection with
the Contract Documents have been paid.
20.11 Prohibited Interests. No official, employee, or agent of Town, nor any member of
their immediate family, may have any direct or indirect interest in this Contract.
20.12 Authority to Execute. Each Party represents and warrants that all necessary action
has been taken by such Party to authorize the undersigned to execute this Addendum
and to bind it to the performance of its obligations.
20.13 Assignment. Contractor may not assign the Contract without the prior written
consent of Town, which consent may be withheld in Town's sole discretion since the
experience and qualifications of Contractor were material considerations for this Contract.
20.14 Binding Effect. This Addendum is binding upon the heirs, executors,
administrators, successors and permitted assigns of the Parties.
20.15 Integrated Contract. The Contract and this Addendum is the entire, complete, final
and exclusive expression of the Parties with respect to the Work to be performed under
the Contract and supersedes all other agreements or understandings, whether oral or
written, between Contractor and Developer prior to the execution of this Contract.
20.16 Modification of Contract. No amendment to or modification of the Contract will be
valid unless made in writing and approved by Contractor and by the Developer and by
the Director. The Parties agree that this requirement for written modifications cannot be
waived and that any attempted waiver will be void.
20.17 Counterparts, Facsimile or other Electronic Signatures. The Contract may be
executed in several counterparts, each of which will be deemed an original, and all of
which, when taken together, constitute one and the same instrument. Amendments to
the Contract will be considered executed when the signature of a party is delivered by
facsimile or other electronic transmission. Such facsimile or other electronic signature
will have the same effect as an original signature.
20.18 Waiver by any Party of any term, condition, or covenant of the Contract or this
Addendum will not constitute a waiver of any other term, condition, or covenant. Waiver
by any Party of any breach of the provisions of the Contract or this Addendum will not
constitute a waiver of any other provision, or a waiver of any subsequent breach or
Page 17
OAK#4838-8700-5048 v1
violation of any provision of this Contract. Acceptance by Developer and the Town of any
Work performed by Contractor will not constitute a waiver of any of the provisions of this
Contract.
20.19 Interpretation. The Contract and this Addendum will be interpreted, construed and
governed according to the laws of the State of California. Each party has had the
opportunity to review the Contract and this Addendum with legal counsel. The Contract
and this Addendum will be construed simply, as a whole, and in accordance with its fair
meaning. It will not be interpreted strictly for or against either party.
20.20 Severability. If any term, condition or covenant of the Contract and this Addendum
is declared or determined by any court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of the Contract and Addendum will not be
affected and the Contract and Addendum will be read and construed without the invalid,
void or unenforceable provision.
20.21 Venue. In the event of litigation between the parties, venue in state trial courts will
be in the County of Marin. In the event of litigation in a U.S. District Court, venue will be
in the Northern District of California, in San Francisco.
The Parties have caused this Addendum to be executed by their undersigned authorized
agents as follows:
Developer
By:
Signature
Print Name:
Print Title:
Date:
Page 18
OAK#4838-8700-5048 v1
CONTRACTOR
Print Contractor Name:
(If not an individual, two signatures are required)
By:
Signature
Print Name:
Print Title:
Date:
By:
Signature
Print Name:
Print Title:
Date:
Page 19
OAK#4838-8700-5048 v1
EXHIBIT A
INSURANCE
1. General Requirements. Contractor must procure and maintain in full force and
effect during the term of this Contract the following types of insurance with coverage limits
complying, at a minimum, with the limits set forth below:
Type of Insurance Limits (combined single)
Commercial General Liability $2,000,000
Business Automobile Liability $1,000,000
Workers' Compensation Statutory Requirements
2. Commercial General Liability Insurance. This policy must meet or exceed the
requirements of Insurance Services Office (ISO) CGL Form No. CG 00 01. The amount
of insurance set forth above will be a combined single limit per occurrence for bodily injury,
personal injury, and property damage for the policy coverage. The insurance must be on
an "occurrence" not a "claims-made" basis. Defense costs must be paid in addition to
limits. There must be no cross-liability exclusion for claims or suits by one insured against
another. Limits may be no less than $2,000,000 per occurrence for all covered losses,
and no less than $4,000,000 general aggregate.
Liability policies must be endorsed to name the Developer and the Town, its officials,
employees and agents as "additional insureds" under the insurance coverage ("Additional
Insureds")
The policy must state that such insurance will be deemed "primary" such that any other
insurance that may be carried by the Additional Insureds will be deemed "excess" to that
of Contractor. This endorsement must be reflected on ISO Form No. CG 20 10 11 85 or
88, or equivalent form as determined by Town Attorney.
Coverage must be applicable to the Additional Insureds for injury to employees of
Contractor, subcontractors, agents or others performing any part of the Work required
under this Contract. Each policy must be endorsed to provide a separate limit applicable
to this Project.
The Commercial General Liability policy must not contain any endorsements limiting
coverage beyond the basic policy coverage for any of the following:
1. Explosion, collapse or underground hazard (XCU);
2. Products and completed operation;
3. Pollution liability; or
4. Contractual liability.
Page 1
OAK#4838-8700-5048 v1
3. Business Auto Coverage. This policy must be on ISO Business Auto Coverage
Form CA 00 01 including symbol 1 (Any Auto) and Endorsement CA 0025, or equivalent
forms approved in writing by Town Attorney. Limits must not be less than $1,000,000 per
accident, combined single limit, or if Contractor neither leases nor owns vehicles, this
requirement may be satisfied by a non-owned auto endorsement to the general liability
policy described above. If Contractor or Contractor's employees will use personal autos
in any way on this Project, Contractor must provide evidence of personal auto liability
coverage for each such person.
4. Workers Compensation. Contractor must have a State of California approved
policy form providing the statutory benefits required by law with employer's liability limits
of no less than $1,000,000 per accident for all covered losses, or Contractor must provide
evidence of an approved self-insurance program.
5. Other Insurance; Revisions to Insurance. Contractor may be required to obtain
such other insurance coverage as may be required by applicable law or by the Additional
Insureds.
6. Acceptable Insurers. All required insurance policies must be issued by an
insurance company currently authorized by the California Insurance Commissioner to
transact the business of insurance in the State of California, with an assigned
policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved
by the Town's Risk Manager.
7. Excess or Umbrella Liability Insurance (Over Primary). If an excess or
umbrella liability policy is used to meet limit requirements, the insurance must provide
coverage at least as broad as specified for the underlying coverages. Any such coverage
provided under an excess or umbrella liability policy must include a "drop-down provision"
providing primary coverage above a maximum $25,000 self-insured retention for liability
not covered by primary but covered by the umbrella. Coverage must be provided on a
"pay-on-behalf" basis, with defense costs payable in addition to policy limits. There may
be no cross-liability exclusion precluding coverage for claims or suits by one insured
against another. Coverage must be applicable to Additional Insureds for injury to
employees of Contractor, its subcontractors or others performing work to satisfy
Contractor's obligations under this Contract. The scope of coverage provided is subject
to approval of Town Attorney following receipt of proof of insurance as required herein.
Limits are subject to review, but in no event may be less than $2,000,000 per occurrence
and aggregate.
8. Certificates of Insurance and Endorsements. Prior to commencing any Work
under this Contract, Contractor must provide the Developer and the Town with
Certificates of Insurance and Endorsements evidencing the existence of all insurance
required by this Contract, along with such other evidence of insurance or copies of policies
as may reasonably be required by Town. Such Certificates of Insurance and
Endorsements must be in a form approved by the Town Attorney. Contractor must
maintain current certificates and endorsements on file with Town during the term of this
Page 2
OAK#4838-8700-5048 v1
Contract reflecting the existence of all required insurance. Each of the certificates must
expressly provide that no material change in the policy, or termination thereof, will be
effective except upon 30 days' prior written notice to Developer and the Town.
9. Failure to Maintain Required Insurance. If Contractor, for any reason, fails to
have in place at all times during the term of this Contract all of the required insurance
coverage, the Developer and/or the Town may, in addition to any other available
remedies, (a) obtain such coverage at Contractor's expense and deduct the cost from the
sums due Contractor, (b) make a claim against the Contractor's surety, or (c) terminate
the Contract.
10. Effect of Coverage. The existence of the required insurance coverage under this
Contract will not be deemed to satisfy or limit Contractor's indemnity obligations under
this Contract.
11. Higher Limits of Insurance. If Contractor maintains higher limits of insurance
than the required amounts shown in Section 1 above, then such amounts will be the
minimum required under this Agreement.
Page 3
OAK#4838-8700-5048 v1
BOND NO.
EXHIBIT B
PERFORMANCE BOND
On ("Developer"). entered into a contract
("Contract") with
("CONTRACTOR" or "PRINCIPAL"), for the work ("Work") identified as
The Contract and related documents ("Contract Documents") are incorporated and made
a part of this performance bond.
Under the Contract, CONTRACTOR is required to furnish this bond providing for the
faithful performance of the Work
NOW, THEREFORE, we, CONTRACTOR, as PRINCIPAL, and
a corporation organized and existing under the laws of the State of
and duly authorized to transact business under the laws
of the State of California, as SURETY, are held and firmly bound unto Developer and the
Town of Tiburon ("TOWN") , in the sum of
_dollars ($ ), lawful money of the United States of
America, this sum being not less than one hundred percent (100%) of the estimated
amount payable by the Developer under the terms of the Contract , PRINCIPAL and
SURETY, bind ourselves and our heirs, executors, administrators, successors and
assigns, jointly and severally, by this instrument. The Developer and/or the TOWN may
make demand upon the SURETY to complete the Work if the CONTRACTOR fails to
satisfactorily perform the Work.
BOND CONDITIONS
1. PRINCIPAL will perform the Work the identified in the Contract. Developer has
estimated the required amount of the bond as shown above.
2. PRINCIPAL's performance of the Work will be done in accordance with the
Contract Documents. Should PRINCIPAL fail to satisfactorily complete all required Work
within the time allowed, the Developer and/or the TOWN may, at its sole discretion, either
(1) cause all required Work to be done and the parties executing this bond will be firmly
bound for the payment of all necessary costs for the performance of this Work or(2) make
demand upon the SURETY to complete the required Work in which event the SURETY
will commence completion of the Work within 30 days of the demand BY THE Developer
Pagel
OAK#4838-8700-5048 v1
or the Town, whichever demand is earlier, unless otherwise agreed in a writing signed by
the parties.
3. PRINCIPAL will guarantee the Work against any defective work, labor or materials
for a period of one year following the completion and acceptance of the Work by the
Developer and the TOWN.
4. This bond is conditioned upon and guarantees due compliance with all applicable
law including, without limitation, the Tiburon Municipal Code.
5. SURETY agrees that no changes, extensions of time, alteration or modification of
the Contract or of the obligations to be performed thereunder will in any way affect its
obligation on this bond, and waives notice of any such change, extension of time,
alteration or modification of the Contract or of the obligations to be performed.
Furthermore, SURETY expressly waives the provisions of California Civil Code sections
2845 and 2849.
6. This bond consists of this instrument, the Contract and Contract Documents
referenced above, and the following two attached exhibits, all of which are incorporated
herein by reference:
1. A certified copy of the appointment, power of attorney, bylaws or other instrument
entitling or authorizing the persons executing this bond to do so; and
2. A certificate issued by the county clerk for the county in which SURETY's
representative is located conforming with California Code of Civil Procedure § 995.640
and stating that SURETY's certificate of authority has not been surrendered, revoked,
cancelled, annulled, or suspended, or in the event that it has, that renewed authority has
been granted.
7. In case suit is brought upon this bond, the court will award and SURETY must pay,
in addition to the face amount of this bond, all costs and reasonable attorney's fees
incurred by the Developer and the TOWN in successfully enforcing any obligation under
this bond.
IN WITNESS THEREOF, we have hereunto set our hands and seals this day of
20
OAK#4838-8700-5048 v1 2
PRINCIPAL
By
Title
Address
Signature
SURETY
By
Title
Address
Telephone Number
Signature
ALL SIGNATURES ON THIS PERFORMANCE BOND MUST BE NOTARIZED
USING APPROPRIATE 8'/2" x 11" NOTARY ACKNOWLEDGEMENT FORM.
** Appropriate modifications will be made to
this form if the bond is being furnished for the performance of an act not provided
for by agreement.
*** Corporations must affix corporate seal.
OAK#4838-8700-5048 v1 3
BOND NO.
EXHIBIT C
PAYMENT BOND
On ("Developer") entered into a contract ("Contract")
with
("CONTRACTOR" or "PRINCIPAL"), for the work ("Work") identified as
PRINCIPAL is required to furnish a bond under the Contract to secure the
payment of claims of laborers, mechanics, material persons, and other persons as
provided by law.
PRINCIPAL and
a corporation incorporated under the laws
of the State of and licensed by the State of
California to execute bonds and undertakings as sole surety ("SURETY"), are held and
firmly bound unto the Developer and the Town of Tiburon ("TOWN") in the sum of
dollars
($ ), lawful money of the United States, which may be
increased or decreased by a rider hereto executed in the same manner as this bond, for
the payment of which sum PRINCIPAL and SURETY bind themselves, their successors,
and assigns, jointly and severally, by this instrument.
BOND CONDITIONS
1. PRINCIPAL will construct the Work identified in the Contract. Such performance
will be in accordance with the Contract Documents identified in the Contract, which are
hereby incorporated and made a part of this bond. The Developer has estimated the
required amount of the bond as shown above.
2. If PRINCIPAL, its heirs, executors, administrators, successors, assigns or
subcontractors fail to pay any of the persons named in California Civil Code section 3181,
or any amounts due under the California Unemployment Insurance Code with respect to
work or labor performed under the Contract, or any amounts required to be deducted,
withheld, and paid over to the Employment Development Department from the wages of
employees of the Contractor and its subcontractors under Unemployment Insurance
Code section 13020, with respect to work or labor performed under the Contract,
SURETY will pay for the same in an amount not exceeding the penal sum specified in
this bond.
Page 1
OAK#4838-8700-5048 v1
3. This bond inures to the benefit of any of the persons named in Civil Code section
3181 so as to give a right of action to such persons or their assigns in any suit brought
upon this bond. In case suit is successfully brought upon this bond, SURETY further
agrees to pay all reasonable attorneys' fees and costs in an amount fixed by the court.
4. This bond is conditioned upon and guarantees due compliance with all applicable
law including, without limitation, the Tiburon Municipal Code.
5. SURETY agrees that no changes, extensions of time, alteration or modification of
the Contract or of the obligations to be performed thereunder will in any way affect its
obligation on this bond, and waives notice of any such change, extension of time,
alteration or modification of the Contract or of the obligations to be performed.
Furthermore, SURETY expressly waives the provisions of California Civil Code sections
2845 and 2849.
6. This bond consists of this instrument, the Contract and Contract Documents
referenced above, and the following two attached exhibits, all of which are incorporated
herein by reference:
1.A certified copy of the appointment, power of attorney, bylaws or other instrument
entitling or authorizing the persons executing this bond to do so; and
2.A certificate issued by the county clerk for the county in which SURETY's representative
is located conforming with California Code of Civil Procedure § 995.640 and stating that
SURETY's certificate of authority has not been surrendered, revoked, cancelled,
annulled, or suspended, or in the event that it has, that renewed authority has been
granted.
IN WITNESS THEREOF, we have hereunto set our hands and seals this day of
20
OAK#4838-8700-5048 v1 2
PRINCIPAL
By
Title
Address
Telephone Number
Signature
SURETY
By
Title
Address
Telephone Number
Signature
ALL SIGNATURES ON THIS PAYMENT BOND MUST BE NOTARIZED USING
APPROPRIATE 8%" x 11" NOTARY ACKNOWLEDGEMENT FORM.
** Appropriate modifications will be made to
this form if the bond is being furnished for the performance of an act not provided
for by agreement.
*** Corporations must affix corporate seal.
OAK#4838-8700-5048 v1 3